Chapter #6.docx

Chapter 6 Negligencey Tort of Negligence determines whether the defendant can be held liable for carelessly causing injury to the plaintiff y Ex A manufacture may produce a beverage that makes a consume sick y Tort of Negligence requires the plaintiff to prove that the defendant o owed a duty of care in that it was required to act carefully toward the plaintiff o Breached the standard of care by acting carelessly o Caused harm to the plaintiff y Defendant can show at least one of the three possibilities o Plaintiffs harm caused by its own contributory negligence o The plaintiff voluntarily assumed the risk of being injured by the defendant o The plaintiff was injured while engaged in some form of illegal behaviourDuty of carebreached standard of carecausation of lossliability unless defence y There are 2 preliminary matters 1 Professional negligence refers to negligence that is committed by a professional person such as a banker or lawyer or an accountantHave to act as a reasonable person 2 Law of negligence contains a tension between two important values On the one hand the courts want a wide scope of liability in order to compensate people who suffer injuries In the other hand the courts recognize that the imposition of liability sometimes actually hurts societyQuite difficult to sue a physician largely because judges do not want to discourage doctors from practicing in risky areas such as obstetricsDuty of Care y Courts use the concept of DOC to control the scope of liability under the cause of action of negligence Duty of care exists if defendant is required to use reasonable care to avoid harm to plaintiff y A y Without duty of care there cannot be a liability even if the defendant carelessly injured the plaintiffTEST OF DETERMING DUTY OF CAREThe judge will first ask whether or not the duty of care question has already been answered for the particular type of case that she is hearingIf the duty of care question has not already been answered for the particular type of case that the judge is hearing then three questions will be asked to see if duty of care should exist 1 Was reasonably foreseeable that the plaintiff could be injured by the defendants carelessness 2 Did the parties share a relationship of sufficient proximity 3 If an injury was reasonably foreseeable and if the parties shared a relationship of sufficient proximity then a duty of care will presumably exits The judge might still deny a duty of care however on the basis of Policy Reasons1 Reasonable ForeseeabilityTest is objective would reasonable person have foreseen that its activates might injure plaintiffImportant that reasonable person in the defendants position would have recognized that possibility